Liability insurers on both sides of the Atlantic are cutting coverage they offer to businesses ahead of an expected wave of discrimination complaints as employers recall staff to their desks after 18 months of pandemic-induced work from home.
There have been around 2,950 COVID-19 employment lawsuits in the United States since the start of the pandemic, ranging from remote work disputes to workplace safety and discrimination, according to the firm of attorneys Fisher Phillips.
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Now, industry sources say companies are starting to trigger policies that protect them against the cost of defending discrimination lawsuits and compensations, known as professional liability insurance (EPLI).
This makes policyholders nervous.
Adrian Cox, managing director of Beazley, a large Lloyd’s of London insurer, calls it a “high exposure area”, especially in North America.
“How you don’t discriminate, how you handle vaccination and testing – these are all hard things for employers to overcome,” he told Reuters.
Karen Cargill, a management liability specialist at insurance broker Marsh in London, said a fifth of notifications by her insurer clients of possible EPLI claims in Britain were linked to COVID in the past six months .
Jabs for jobs
Insurers, employers and lawyers view mandatory vaccinations as a limited but growing point of contention.
Tech giants like Alphabet Inc’s Google and Facebook Inc are among companies that have told all U.S. employees to get vaccinated against COVID-19 before entering offices or campuses to help protect the health and safety of their colleagues.
Vaccine-related claims in the United States represent less than 5% of total COVID-19 combinations – or less than 150 – said Kevin Troutman, partner and co-chair of Fisher Phillips’ health industry team . But it should increase.
“The vaccine warrants conundrum is just the next version of the COVID claims that we’re going to see,” said Kelly Thoerig, who oversees Marsh’s US EPLI practice.
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According to preliminary results of an ongoing survey of more than 200 U.S. employers launched on July 19 by Mercer consultants, 14% now require staff to be vaccinated to work at a corporate site.
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A number of US employers with such policies have already faced court hearings. Workers at a hospital in Texas said the vaccinations were experimental and the staff were being used as “human guinea pigs.”
The case was dismissed in June and some lawyers say this type of case is unlikely to be viable.
But workers could benefit from protection if they can’t get vaccinated for medical or religious reasons – unless it represents “undue hardship” for the company, according to the US Insurance Information Institute. United.
Vulnerable workers could also sue employers because the lack of a mandatory vaccination policy puts them at risk.
However, even if the cases are dismissed, the defense costs would fall on employers – and their insurers.
So far, labor lawyers in Britain have seen fewer lawsuits for discrimination.
In one case in Scotland, a leader won unfair dismissal after being dismissed without notice after raising concerns about the lack of personal protective equipment and the risk of passing the coronavirus to his vulnerable father.
On vaccination, lawyers say ‘no jab, no work’ contracts – such as those offered by London-based Pimlico Plumbers – risk discriminating against younger staff, who may not yet have received her second vaccine, or pregnant women, who may prefer to be vaccinated after childbirth.
“If an employee decided to refuse the vaccine by personal choice… it would be possible to exclude him from the premises for health and safety reasons,” said Jo Keddie, lawyer at Winckworth Sherwood.
“(But) if an employee refuses to be vaccinated because of a health problem or religious belief, they could argue that a mandatory vaccination policy is a disability or religious discrimination.”
Many insurers are reducing their exposure by adding restrictions on new or renewed policies, forcing employers to bear more of the costs and increasing premium rates, according to Jason Binette, EPLI product manager at AmTrust Exec in Windsor, Connecticut. .
Lloyd’s of London insurers are among those who have removed EPLI coverage from the broader insurance packages they offer businesses, in an effort to keep prices down. But specialty insurers in Bermuda, for example, still offer such coverage, brokers said.
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Business is booming for those still selling EPLI, and premium rates are rising.
AmTrust has seen a 22% increase in requests for coverage since the start of the pandemic, in part thanks to new small business customers.
“I see companies that have been around for 40 years that haven’t had coverage… and want it now,” Binette said, adding that premium rates had jumped 10-20%.
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Sam Vardy, managing partner of London-based insurance broker Howden, estimates the rate hike at 25-75% over the past 18 months.
Some employers are simply saying that the price of the EPLI is too high to risk bringing staff back to the offices, according to Julia Graham, CEO of the UK Insurance Buyers Association Airmic.
“They can’t get (insurance) for the price they’re willing to pay,” she said.
– Additional reports by Muvija M. in Bengaluru; Editing by Kirsten Donovan
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